Newsletter

Employment and Labor Update

The new Republican-majority National Labor Relations Board recently issued another decision signaling its intent to accept more employer-friendly policies. In December, the Board decided The Boeing Company, a case concerning Boeing’s handbook rule prohibiting employee use of camera-enabled devices on its property. In addition to deciding that Boeing’s no-camera policy did not violate the National Labor Relations Act (“NLRA”), the Board went on to articulate a wholly new standard for determining when a facially-neutral employer policy violates the NLRA.

The NLRA prohibits an employer’s unlawful interference with employees’ rights to engage in “concerted activities” for “mutual aid and protection.” In 2004, the Board established the Lutheran Heritage test to determine whether a particular employer policy infringed upon those rights. Under the Lutheran Heritage test, a facially-neutral employer policy, such as a rule banning the use of camera phones or a rule prohibiting rude or uncivil behavior, would be found unlawful if an employee could “reasonably construe” the language of the rule to prohibit protected activity.

In overruling Lutheran Heritage, the Board noted the many problems created by the “reasonably construe” test. The Board stated that the test failed to consider any legitimate justifications an employer might have for a challenged policy, that the test resulted in the invalidation of otherwise valid policies simply because they could be interpreted as infringing upon protected rights, and the test has yielded unpredictable results.

The Board then articulated a new standard, under which the Board would “strike the proper balance between . . . asserted business justifications and the invasion of employee rights in light of the Act and its policy.” When evaluating a facially-neutral handbook policy, the Board now will consider: (1) the nature and extent of the potential impact on NLRA rights; and (2) the employer’s legitimate justifications associated with the rule. In applying the new rule to Boeing’s no-camera policy, the Board found that the potential adverse impact on protected activity was minimal and Boeing had significant justifications for wanting to keep cameras out of the workplace.

The Board also outlined three categories into which all employer rules would fall based on the results of the balancing test. Category One rules are lawful rules either because they do not interfere with protected activity or because the employer justifications outweigh the potential adverse impact on protected rights. The Boeing Board announced that rules requiring employees to abide by basic standards of civility will fall under Category One. Category Two rules are rules that warrant individualized scrutiny as to whether they would interfere with protected activity, and if so, whether there is legitimate justification for the rules. Category Three rules are unlawful either because they limit protected activity or their adverse impact outweighs the employer justifications for the rule.

The Boeing decision has potentially major implications for employers. Under the new standard, the Board will give much more consideration to an employer’s reasons for maintaining a policy. This means that facially-neutral policies that may have been held unlawful under Lutheran Heritage could pass muster under the new standard. However, employers are warned not to broaden their policies too much in light of the Boeing decision, as the Board could rule differently in the coming years if the composition of the Board changes. Additionally, even if a policy is lawful under the new standard, it cannot be applied in such a manner as to interfere with protected rights.

If employers do wish to consider altering a policy in light of the Boeing decision, they are encouraged to contact any of the Labor and Employment Attorneys at Fennemore Craig for assistance.